In 1995, Mec Vannin drew up a detailed
policy for Freedom of Information legislation in the Isle of Man. A Committee
of Tynwald had been appointed to investigate the matter. The outcome was
disappointing to say the least: Walter Gilbey, one of the members, issued
a memorandum of dissent to the eventual outcome, which was itself a feeble
recommendation that there be a code of practice for Government departments.
There is still no freedom of information in the Isle of Man. Indeed, the
government is more secretive and evasive than ever.

In addition to this document, Members of
Mec Vannin's committee gave extensive oral evidence to the Tynwald Committee.
It is hoped to archive this evidence on this site in time.

PART ONE - GENERAL PRINCIPLES

1.1. Before making any specific recommendations
regarding freedom of information, a philosophy must be established. This
philosophy must then be translated into a policy that is practical in any
given environment.

1.2. Freedom of information may, at times,
conflict with the rights or privacies of the individual or, conversely,
enhance them. The Data Protection Act is a fine example of how, from an
individual point of view, freedom of information and rights of privacy
can be enhanced at one and the same time. It can also be misused, however,
to unnecessarily deny access to other information.

1.3. Many countries around the world recognise
the need to have freedom of information legislation, be it in terms of
governmental or personal records. Such legislation has stemmed from a primary
assumption that there is a default right to secrecy. In terms of personal
information, this may be so, but in terms of information that is not specific
to an individual, the reverse is perhaps true.

1.4. We live in a society which is a collection
of individuals. The individual has great importance. The actions of the
society affect the life of the individual and vice versa. Accepting the
principle of democratic rule, both society and the individual must be represented
through a government. This government has a responsibility to all individual
elements of that society, and must be accountable for its actions and decisions.

1.5. Further accepting that in a democratic
society, all members excluding those who have a specific debar against
them should be able to partake in and input to the decision making process,
and that natural justice dictates that any individual should be able to
access information that affects or relates to them, the default condition
for information should be that it is accessible unless it meets criteria
to specifically say otherwise.

1.6. Up to this point, only individuals
and government have been mentioned, but there are also organisations outside
of government, such as clubs, companies and associations that must be catered
for in any specific legislation. As much as an individual has a right to
privacy in their own affairs, so do these bodies, but in the same way that
aspects of an individual's affairs may be deemed public domain, so may
the affairs of such other bodies.

1.7. The philosophy can be summed up thus:

a) An individual or body has a right by
default to access information that directly relates to them or will directly
affect them.b) An individual or body has a right to
maintain, by default, all matters that only relate to themselves as private.c) The first two principles should only
be over-ridden when specific criteria are fulfilled.d) Whilst respecting b), all matters of
government are public domain.

PART TWO - FREEDOM OF INFORMATION IN MANNIN

2.1. Despite having the oldest parliament
in the world, rights and freedoms of the individual to question and investigate
the workings of the government are thin on the ground. There seems to be
an assumption that by electing a representative, the populace abrogate
all rights and confer them upon the representative. These representatives
then abrogate many of their rights as representatives and confer them upon
indirectly elected bodies i.e. the Council of Ministers and the Legislative
Council.

2.2. This situation is "paternalistic"
(patronising?) rather than democratic. Even accepting the current constitution,
and that at some point trust must be placed in an individual to make decisions
on the part of many, both in terms of democratic accountability and with
reference to the philosophy established in Part One, this situation is
incorrect.

2.3. It may be argued by certain quarters
that there is no abuse of the system, and therefore there is no need to
change it. This is completely fallacious. Human nature is exactly the same
in Mannin as in any other part of the world. It must be assumed that there
are individuals who have and will abuse positions of authority, and will
use confidentiality / secrecy to prevent proof of this.

2.4. Far from seeing a move towards greater
freedom of information, as would be expected in an evolving democracy,
we see the Data Protection Act frequently being used to deny access to
information that should be public domain, while individual rights to privacy
are under threat.

2.5. The Council of Ministers meets secretly,
and often acts unilaterally in areas that are the rightful province of
Tynwald as a whole. Whilst members are forced, on many issues, to vote
en-block, the voting within the council is secret.2.6. Even at local authority level, members
of the public wishing to gain information about decisions that affect their
lives are frequently denied access to it.

2.7. Individuals and bodies frequently
have arguments or applications considered in camera. There is frequently
no right to access the proceedings for any appeal. Apart from being in
contradiction of natural justice and democracy, this causes suspicion and
accusation. Third parties can also be named and misrepresented in these
cases, and whereas the primary subject may have a right to access the information,
the third party does not.

2.8. The Chief Minister, Mr. Miles Walker,
has stated his opposition to records even from 100 years ago being made
public. There is no logical reason for this, other than hiding from the
public, activities of the governments of that time that could have repercussions
now.

2.9. Notwithstanding the comments made
in 2.1., elected representatives frequently find themselves denied access
to information in the course of their duties, by departments and members
of a government of which they are a part. Although members have the right
to ask questions, the responding member can sidestep the question, claim
confidentiality or, let us be quite realistic, lie. The current uproar
in the U.K. House of Commons involving Mr. William Waldegrave and "the
necessity to lie" re-inforces this statement.

2.12. Public money is frequently used to
commission investigations and reports for specific departments. Theirfindings often remain secret, not just
to the public, but to members of Tynwald as well.

2.10. Many candidates in the 1991 General
Election stated their concern about freedom of information. There is clearly
a perceived need for this outside of Government itself.

2.11. It can be concluded that in terms
of government in Mannin, there is a pressing need for freedom of information
legislation.

2.12. Moving away from government, what
right to secrecy / confidentiality can organisations and individuals claim?
Is there any need to know "somebody else's business"? Clearly, if the extent
of information access alluded towards above were applied to the individual,
there would be a very real sense of "Big Brother". The human need for privacy
in our personal lives is well identified. Apart from ideological arguments,
behavioural problems can be associated with the erosion of the individual's
personal confidentiality. This, in turn, leads to problems for the society
as a whole.

2.13. In Sweden, anyone may access the
government's central information records to obtain information about an
individual's income and other data that we regard as personal. This, combined
with many other aspects of Swedish legislation, makes for a totalitarian
outlook. The suicide rate in Sweden is popularly rumoured to be high. The
Swedish interpretation of freedom of information is not a model to be followed.

2.14. Companies and businesses cannot claim
the same degree of protection as the individual in this aspect; they have
entered the public domain by incorporation with Limited Liability or similar
status. Certain aspects of their activities should, therefore, be open
to public scrutiny. At the present time, limited companies must declare
their directors and secretaries, along with other information, which is
available for public scrutiny. The internal affairs of such businesses,
for the greater part, remain just that.

2.15. There are many parties, organisations,
clubs etc. that do not fall into any category yet mentioned. The right
of free association is an important one and provided that the activities
of such organisations fall within the framework of the law, there should
be no need for further scrutiny except in the cases where such organisations
are dealing with information concerning individuals.

2.16. It can be concluded that in general
terms, existing statutes cater for the arguments set out in paras. 2.12.
to 2.15. The main deficiencies are in terms of individuals gaining access
to information about themselves. Although this has been partially addressed
by the Data Protection Act, no provision is made for non-electronically
managed data. European legislation is currently being drawn up to address
this area, but we should be willing to act of our own initiative in this
matter.

2.17. There has been considerable argument
in the U.K., and to a lesser extent in Mannin, about freedom of the press.
Mec Vannin's policy on the media clearly states its belief in a healthy,
independent media. As such, any move to censor or "gag" the press must
be viewed with extreme disdain.

2.18. In balance of this, there have been
instances in both the U.K. and Mannin where it has been claimed that justice
has been prejudiced by media coverage. In view of this, there ought to
be some controls over what can and cannot be reported in relation to specific
cases before their conclusion.

2.19. Bearing in mind the principles established
in Part One, there must never be any reason to prevent broadcasting the
truth when not subject to specific and exceptional confidentiality. Some
reporting may be extremely insensitive, but providing it is accurate and
does not prejudice a specific case, then it must be allowed. By far the
best way of curbing over-zealous and insensitive reporting in our own community,
is for the public to make their views known to those responsible.

PART THREE - INTRODUCTION TO A POLICY

3.l. Part Two revealed that the major area
for concern is that of government information. The following policy is
as comprehensive as time allows, and without wishing to be too specific.
It may very well be that some conditions of the policy are satisfied by
existing law. The intention of the policy part of the submission is to
draw guidelines to be satisfied, not to make recommendations for alteration
or expansion of existing law, although Part Five deals with specific examples.

3.2. There has been a misconception as
to the meaning of "freedom of information" by some parties; it seems to
have been mistaken for public participation. Meetings conducted in private
may very well be continued in private, but the results of those meetings,
e.g. decisions taken, those present, etc., are information.

3.3. There will always be secrecy: Totalitarian
regimes have done there utmost to subvert individual freedom, but dissidents
and opponents have invariably still managed to secretly organise themselves.
We must conversely accept that if those who find themselves in positions
of authority wish to conduct secret business, they will. The important
element of freedom of information is that, apart from giving access to
a large amount of information for which there is no possible need for secrecy,
where actions and answers contradict recorded information, those responsible
can be made accountable.

3.4. No organisation can be successfully
managed without record keeping of some form. It is these records that form
the greater part of the information we will deal with. This restates the
fact that freedom of information does not necessarily entail more record
keeping.

3.5. The following policy intends to convey
the spirit of the legislation. Specific terms are not to be interpreted
as having specific legal intent.

4.2. Any person should have the right to
access any record that relates directly to them. This would include records
held by other individuals or bodies.

4.2.1. There is no need for policing this
matter in the same way as the current Data Protection Act is; if a person
can demonstrate that they have justifiable cause to believe that information
is held about them and is not being disclosed, farther investigation can
take place.

4.2.2. This would not give the right to
access information concerning other individuals held in the same record;
the relevant information would be extracted.

4.2.3. Innocuous information such as telephone
numbers, simple names and addresses (when not linked to additional information)
and when only kept for the purpose of contacting the person would not be
covered by this right.

4.2.4. Exemptions can be made, where to
reveal the information could adversely affect a person's well-being or
compromise or prejudice a criminal investigation or proceeding.

4.3. Defendants must have the right to
access any and all prosecution evidence.

4.3.1. Although this provision is implicit
in 4.1., it should be clearly stated so that no exemptions are claimed.

4.3.2. In the U.K., this provision has
been used to obtain explicit photographs of crime victims for sale on the
underground market. This could be guarded against by only issuing such
material to lawyers, or in the case of people defending themselves, only
viewed or used under some form of supervision.

4.4. All meetings of members of any public
body where decisions are formally taken should be minuted at least to the
extent of stating who was present and what decisions were taken.

4.4.1. There is no great hardship involved
here: There would be very few occasions indeed when extra paper-work would
be required since there can be few meetings where some sort of note is
not made. We live in the age of computer technology. The storage of such
information in "soft" form is extremely easy.

4.4.2. Public bodies would include all
government departments, local authorities, bodies enjoying charitable status
and "QuANGOs".

4.5. Any citizen of Mannin would have the
right to access any and all such records, provided that it does not infringe
privacy or prejudice or compromise an ongoing police or legal matter.

4.5.1. Specific definitions of privacy
are required. It should not be that a person is able to take another person's
name and find out all about them from government records. On the other
hand, surely it is justifiable that if a person wishes to know, for example,
the registered owner of a vehicle being used on the public highway, then
they can by referring to the record for the vehicle. Similarly, if a person
wishes to know who owns a specific piece of property, then they should
be able to find out from the land registry.

4.5.3. Although money received by individuals
from government (such as benefits, grants and loans) is taxpayers' money,
and taxpayers have a right to know how their money is spent, to reveal
individual details is to compromise privacy. Furthermore, many assistances
are means tested, and to know the results of another individual's application
would reveal further indications of personal status.

4.6. All government commissioned reports
and investigations should become public property upon their completion,
whilst respecting section 4.5.

4.6.1. Government departments spend many
thousands of pounds on reports, many of which remain confidential not only
from the general public, but also from other members of government. This
can be used to suppress findings that are not to the liking of a particular
person or department.

4.7. The media should have access to the
same and only the same information as the general public.

4.7.1. There have been several instances
where the media has been criticised for its coverage of court and police
matters. There have been subsequent calls, by some, to limit press freedom
in this respect. The fact remains that whatever is said in open court is
public domain and must not be in any way suppressed.

4.7.2. Any measures directed at controlling
the media from reporting (accurately) that which any member of the public
can witness for themselves is quite ridiculous. The crux of this matter
is whether or not appearances to plead or committal proceedings should
be held in open court or in camera. This is an area outside the remit of
this report.

4.7.3. There is a case, which is covered
by section 4.7. and 4.5., for withholding names of persons helping police
enquiries or charged with offences prior to appearance in open court.

4.7.4. The matter of sub-judice is a legal
one and it is for the editors of media news to ensure that reporting does
not degenerate into speculation, inference or prejudgement. Some of the
attempts by certain parties to claim contravention of sub-judice principles
have been quite pathetic, but nonetheless have been successful in scaring
the media from discussing current affairs. Perhaps there is a need to more
clearly define sub-judice, but that again is another matter.

4.8. Only when sanctioned by a suitably
qualified person could the default rights to information as defined in
the previous paragraphs be over-ridden.

4.8.1. This is necessarily vague. Just
who is a suitably qualified person (or persons) in this matter is a matter
for investigation in itself.

4.8.2. It will always be claimed that certain
matters must remain confidential "in the National Interest," but if thisprovision is used, it must be used under
strict supervision.

4.9. Time scales for the retention of various
types of information held by a public body should be applied.

4.9.1. Although interesting from an historical
point of view, to be able to view the accounts of the Tynwald canteen in
50 years time is hardly necessary. On the other hand, Council of Ministers'
meetings minutes will provide useful information to subsequent governments
and generations for an indefinite period of time.

4.9.2. This must not be interpreted as
meaning that such records must be destroyed; in the event of the establishment
of a national archive, such a body should be given the opportunity to save
records that are older than their statutory retention period.

4.9.3. Information relating to individuals
that is confidential should be destroyed upon that person's death.

4.10. There should be an absolute limit
upon the time for which any piece of information held by a public body
(other than personal information as covered by sections 4.5 and 4.9) can
be withheld from public scrutiny.

4.10.1. Some information relating the murder
of J.F.Kennedy are still subject to secrecy in the U.S.A. inspite of the
far reaching freedom of information laws there. This cannot be justified.

4.11. No record held by a public body (other
than those that are confidential as set out in 4.5) should be destroyed
before the public has had an opportunity to view them.

4.11.1. No active part on behalf of the
body is required to notify the public of the records' availability. As
long as a time-table is established for release and subsequent retention
before disposal, it is up to interested parties to ensure they access the
information before it is destroyed.

4.12. Finally, there should be some form
of appeal system for those who wish to access information but are denied.4.12.1. There will always be "grey" areas
in any legislation such as this, and to protect privacy, those responsible
for information storage will invariably err towards the side of confidentiality.
If a party feels they have legitimate grounds for overriding this, then
they should have the opportunity to present them.

PART FIVE - EXAMPLES AND INTERPRETATIONS

5.1. The following examples are a combination
of actual and hypothetical instances. In each case, it is stated which
of the two categories the example falls into. Comment is then made upon
the example and how it should be dealt with in reference to Part Four.
There is no significance in the order of appearance.

5.2. The Council of Ministers makes a recommendation
to the House of Keys (the sale of Manx Radio, for example), but no-one
actually knows who, if any, of the Council were against the recommendation.
(Actual)

5.2.1. This is in contradiction to Section
4.4.

5.3. An investigation is commissioned by
the government into the alleged defects in Ballavargher development. The
report, even when completed, is subject to secrecy. (Actual)

5.3.1. This is in contradiction to Section
4.6. Although the contents of the report did become known, it was alleged
that this was intact a Contempt of Tynwald, and there is every possibility
that it would have otherwise remained secret.

5.4. An organisation funded by private
subscription operates in the U.K. and quite probably in Mannin as well,
that maintains an employment blacklist. To avoid the Data Protection Act,
all records are kept manually (although an illegal electronic database
is almost certainly used in practice). No-one can find out directly whether
or not they are a subject of this list. (Actual)

5.4.1. This is in contradiction to Section
4.2. Even if the list comprises of nothing but names and addresses, its
intent is that of a blacklist and cannot claim exemption through 4.2.3.

5.5. Mr. David Cannan M.H.K. enquires of
the Treasury Minister, Mr. Donald Gelling M.H.K., as to indirect financing
of Cushag Communications via the government subvention to Manx Radio. Both
the Minister and Manx Radio assert that this matter is the private business
of Radio Manx Ltd. Eventually, Mr. Gelling relents and reveals the information
to the House, but with conditions of confidentiality attached. (Actual)

5.5.1. As a private body, Radio Mann Ltd.
are able to primarily claim confidentiality in its internal affairs under
Section 4.5., but since the company is owned by the government and it is
further suspected that the subvention may be being used in a manner for
which it was not intended, Mr. Cannan could invoke Section 4.12. The result
of this would depend upon the findings of the appeal system, but it is
hoped that the outcome would be very similar to that which actually happened.

5.6. A person charged with an offence is
not entirely sure what nature the allegation against them takes, apart
from the charge itself. They request, through their advocate, prosecution
witness statements from the police, but are denied. Without these, it is
almost impossible to adequately defend themselves. (Actual)

5.6.1. This is in contradiction to Section
4.3.

5.7. An individual approaches an organisation
and asks if another individual is a member of that organisation. The organisation
declines to reveal that information. (Hypothetical)

5.7.1. This complies with Sections 4.2
and 4.5. There is no right of access to another individual's records. Equally,
however, the organisation would be at liberty to reveal the name if there
was no implied confidentiality of membership.Mec Vannin - Freedom of Information -
Page 6

5.8. A person suspects that they are the
subject of a police enquiry. They approach the police to find out if this
is the case. The police decline to answer. (Hypothetical)

5.8.1. This complies with Section 4.2.4.

5.9. An individual applies to their local
authority for a change in policy over a local issue. Their request is denied,
but the decision is the result of a departmental meeting rather than an
authority meeting. The individual feels that the decision is based upon
the use of flawed information, but does not wish to start issuing accusations
without knowing the facts. The meeting minutes are confidential, however,
and the person is unable to adequately pursue the issue. (Actual)

5.9.1. This is in contradiction to Section
4.5.

5.10. An ex-employee of a company has reason
to believe that the company has maintained a record on them, and this has
been used to prejudice their search for other work. They approach the company,
who denies having the record. (Hypothetical)

5.10.1. If the company does have a record,
then it is contravention of Section 4.2. The individual concerned would
have to demonstrate to the relevant authorities that there were reasonable
grounds for suspicion before any action could be taken. Even then, the
likelihood of a successful prosecution in the event of the body being unco-operative
with the authorities must be judged to be small.

5.10.2. In the event of an organisation
freely admitting that it has a record of ex-employees and that they have
been used as references by other organisations, there is no contradiction
of this policy providing that the individuals concerned are allowed to
view the information. This would, however, allow the individuals concerned
to take action under legislation concerning free-association, libel, etc.

5.11. An individual believes that they
have been misrepresented by another individual at a D.H.S.S. appeal tribunal.
The result is that the D.H.S.S. start issuing threats against the first
individual, who is unable to access the minutes of the tribunal since they
are confidential to the second person. Consequently, they are unable to
correctly address the matter. (Actual)

5.11.1. This is in contradiction to Section
4.2. Since it is fully known who the primary subject of the hearing is,
there is no question of a breach of confidentiality in revealing those
parts of the minutes that relate directly to the first person mentioned.

5.12. Several individuals appear in open
court accused of offences concerning public and gross indecency. Their
names are listed by the local media. (Actual)

5.12.1. This does not constitute an abuse
by the media since those concerned have appeared in open court, and so
their names and charges are public knowledge.

5.12.2. The media received some severe
criticism over this matter and it has been claimed that some committed
suicide as a result. Some were subsequently found innocent. Whilst the
media may be requested to show restraint from a compassionate point of
view, it must be firmly re-iterated that as long as these proceedings take
part in open court, the press must be free to report them fully.

5.13. A serious crime has been committed
and a man is assisting police enquiries. A police spokesman names the man.
(Hypothetical)

5.13.1. This is a contradiction of Section
4.7. The police will not reveal such information to the general public,
and so it must not be released to the media either (who will, of course,
release it to the general public). It could also be deemed to be in contravention
of Section 4.2. in that it may prejudice or compromise a legal proceeding.

5.14. An approach is made to government
by a private enterprise to acquire a publicly owned asset. The approach
was made "in confidence" but an M.H.K. "gets wind" of the approach and
asks a question in Tynwald. The appropriate minister refuses to comment.
(Hypothetical)

5.14.1. This would be in contradiction
to Section 4.5. unless the information had been subject to classification
under 4.8. The extent of classification would depend upon the individual
case, as judged by the independent party set out in 4.8.5.14.2. This would not be the case where
tenders are invited. This system cannot work unless confidence is maintained
up to the closing date.

5.15. An M.H.K. wishes to see the minutes
of the last meeting between our own government and another, over an ongoing
matter, but is refused. (Hypothetical)

5.15.1. This matter would almost certainly
be subject to Section 4.8. The M.H.K. always has Section 4.12. as arecourse.

5.16. The previous examples do not cover
all aspects of the policy set out in Part Four; this would require a book,
but it is hoped that it shows the spirit of freedom of information in practice.